By Lawrence Kershen QC

On the face of it genocide, crimes against humanity and war crimes hardly sit naturally with Restorative Justice processes - where dialogue is facilitated between victims and perpetrators about a crime and its consequences. Yet the ICC was sufficiently open-minded to invite me to speak about “The Role of RJ in the Criminal Justice Process” in a Guest Lecture at the Court a few months ago.

For those not familiar with RJ – and that seemed to be a majority of the 40 or so audience members – it has been defined as “A process where all those with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”.[i]

More informally it is a safe space in which – if both parties are willing – the victim can meet the offender, have their say, ask questions, agree what can be done to put things right, and move on with their lives. As well as victim and offender, those attending an RJ meeting may include their partners, workmates, neighbours, community representatives – in fact all those secondary victims affected by the crime.

It’s worth noting that RJ is not

• a substitute for a retributive Criminal Justice process
• mandatory or court-ordered
• a ‘soft option’
• designed to reduce re-offending
• about forgiveness

– although these last may arise naturally from the meeting.

The benefits according to Government research[ii] include 85% of victims who regard RJ positively, 78% who would recommend it to others, a significant reduction in PTSD and desire for violent revenge, longer-term health benefits and a reduction in reoffending of 26%.

So it came as a pleasant surprise - no doubt born of my ignorance – to learn that the ICC has a Trust Fund for Victims, established by Article 79 of the Rome Statute. And that the TFV has an assistance programme, with a mission to address harm to individuals resulting from the very crimes over which the court has jurisdiction - genocide, crimes against humanity and war crimes.

If the Court itself orders reparations to victims, part of the TFV’s mandate is to implement them. These reparation orders are based on the convicted person’s criminal responsibility, and are funded through fines and forfeitures. They may be individual e.g. compensation, or collective e.g. reconstruction of destroyed buildings; and symbolic e.g. construction of community centres or service-based e.g. education, training.

The second aspect of the Fund’s mandate is to provide ‘physical and psychosocial rehabilitation or material support’ to victims of crimes that fall within the jurisdiction of the Court. This assistance mandate enables victims of crimes and their families to receive assistance whether or not there has been a conviction by the Court. Resources for this kind of assistance are raised through voluntary contributions by member states and individuals. 

This broad mandate allows the Court to identify and award appropriate assistance to victims in the light of a particular case, and the rights and wishes of the victims and their communities, even to help promote reconciliation within divided communities. It can be offered to a wider range of victims who are affected by the broader situations before the court, whether or not they stem from a particular crime in a particular case.

The work of the TFV in repairing harm caused by some of the gravest and most horrific crimes of modern times is hugely impressive.[iii] At the same time there are some significant differences between such a reparative system and an RJ process. The distinctions between reparation and restoration are more than semantic, and have the potential to enhance the effectiveness of the Trust’s work.

First and foremost, in a typical RJ process the parties - after thorough preparation that may take many months - will meet face-to-face. Victims describe this as a unique opportunity to get answers to questions, like “why me?”. They are able to bring to life the consequences of the other’s actions and gain some understanding of his or her behaviour, and often achieve a degree of closure. Many describe the process as empowering.

If the offender has chosen to participate, s/he has the possibility of understanding the consequences of their actions, redressing as far as possible the harm done, maybe to apologise and find ways make amends – in other words to start to transform their guilt into something more positive. Some speak of a burden having been lifted.

A second distinction is the fundamental principle of RJ that before any restorative meeting can take place the offender has pleaded guilty. The significance is that they have taken responsibility for their acts. In cases tried by the ICC most if not all convictions follow a contested trial. It is rare that a constructive dialogue between victim and offender can happen where the offender is still denying responsibility for the harm caused.

Thirdly, at the end of a restorative process the parties will seek to agree the steps to be taken to restore the status quo as far as possible. They work together with the facilitator to construct this outcome agreement (or accord), as distinct from a Court or other third party deciding what reparations are to be made, usually involving money payments.

Restoration might include money, but more often has non-financial elements, e.g. apology, physical work to repair harm, programmes to support behaviour change, changed procedures to avoid a repetition of the harm done – in other words what the parties regard as the best way to repair the damage and prevent a recurrence.

At the heart of these differences is the personal responsibility offered to both victims and offenders as to whether and how to address harm caused by even the most serious crimes. I don’t know whether there are ways for the ICC to encourage the pleas of guilty that are a prerequisite to an effective RJ process. I do know that empowering the parties to confront criminal behaviour and find ways to repair the harm can hold offenders to account, enhance victims’ sense of justice, and further the invaluable work of the ICC.

Lawrence Kershen QC is a mediator and restorative practitioner and former chair of the Restorative Justice Council.